Is the Human Rights Act (1998) flawed? Does Britain need a new Bill of Rights?
A new British Bill of Rights. The political right emphasise the ‘British’ to reinvent a sense of patriotism; the left talk of the ‘rights’ solely to cling to a ruinous relationship with Europe. The fact remains that ever since its implementation in the year 2000, the Human Rights Act (HRA) has been a source of bitter contention whereas all around the world, states’ Bills of Rights have remained rich repositories of human rights.
One must write with a degree of uncertainty as to what a new Bill of Rights may be. Would it merely be a replication of the existing HRA with a new title, an entirely cosmetic change? Would elements of the existing European Convention on Human Rights (ECHR) be entrenched? Would certain socioeconomic rights be added? Would existing ECHR rights be abandoned altogether? Would it be a departure from ECHR procedural methods? What might the jurisdiction of the new British Bill of Rights be? The case remains, however, for a new Bill of Rights contingent on the sustainability, fairness and clarity of the answers to these questions.
‘Successful in one respect, catastrophic in another’- an apt description of the Human Rights Act 1998. The HRA has made human rights universally known; a triumph. Counterpoised to such success, however, is the removal of one of A.V. Dicey’s two pillars of British government; parliamentary sovereignty. The degradation of the rule of law sees Dicey’s second in disrepair. Indeed, over 6.8% of primary legislation and 14.1% of secondary legislation is imposed onto the United Kingdom (UK) by the unelected, unaccountable, European Union.
Steadily and systematically, the UK Parliament has handed more and more power to judges, the majority of which have crossed the channel and now reside in Strasbourg. Britain finds itself locked into dictatorial, pan-European precedents, which must be abided by and followed under Protocol 11 of the ECHR. The rule of law is not a disembodied ideal, but may soon become ‘the rule of lawyers’ so to speak.
The Europhile’s knee-jerk reaction is to claim that technically speaking sovereignty still resides in Westminster. One of the fundamental issues raised by Klug’s statement is the ineffectiveness of amending the Human Rights Act. Since its enforcement, a large portion of cases – roughly 1200 – have been processed. Under the rules of construction outlined by Section 3, the system of precedent has been affected. It is not possible to strike down primary legislation, and interpretation is subject to ‘so far as it is possible to do so’. This has only ever been successfully achieved twelve times.
“Controversies are the symptoms of constitutional phenomenon.” – Lord Sumption.
Domestic law and the ECHR locked horns in the case of Abu Qatada. On the 22 April 2012, the Sunday Telegraph declared that if the public desire the deportation of Qatada then it is the role of the elected officials to do so. Many legal commentators describe the ‘mob’ that called for Qatada’s extradition as ochlocratic. However, a cluster of Strasbourg judges verbalizing opposition to the whims and wants of an elected government appears far more injudicious. Sir Steven Sedley claimed that courts went to desirable length to respect the sovereignty of parliament. One need only look at the Factortame case to observe where true suzerainty lies; the European python to British justiciability.
In 2014, the World Justice Projects Rule of Law Index assessed a number of areas of law making and legal method and found that the UK is one of the most restrained and checked countries in the world. On a scale of 0-1, 1 being the most constrained, the UK scored 0.81; out of 99 countries, just 9 scored higher. British executives are some of the most restrained when compared to their peers. Though this is not entirely due to the country’s human rights system, there is noteworthy cause for a new British Bill of Rights.
Stemming beyond the occasional Daily Mail headline, Telegraph tabloid or progressive pamphlet, perverse miscarriages of the HRA are becoming more common. Recall the schoolboy arsonist allowed to re-enter the classroom as disciplinary action might hamper his right to education; the convicted rapist given £4,000 because his second appeal was delayed, the burglar given taxpayers’ money to sue the man whose house he had broken into, or the burglar released before the conclusion of his sentence due to his right to family life.
Imagine a neverland, where the rights of the perpetrators are extended far beyond ‘protection from arbitrary state action’, in the direction of a grossly imbalanced, poorly proportioned state of affairs. Now this may have been easier than first thought.
The growing pitfalls of the HRA are exposed by R (Gillan) v Commissioner of Metropolitan Police, which highlights recent incompatibility of the Act in tandem with terrorism legislation. It was argued that the ‘stop and search’ provisions under Section 44 of the Terrorism Act 2000 violated Articles 5, 8, 10 and 11 of the ECHR.
“It is an old and cherished tradition of our country that everyone should be free to go about their business in the streets of the land. However it is not an absolute rule,” stated Lord Bingham. The Lords concluded that the threat of terrorism had changed the ‘traditional freedom to go about our business’ and that the ‘stop and search’ provisions were not unjust. However, the Strasbourg judges have recently overruled the courts’ decision and declared that the provisions were illegal.
In essence, as Britain’s terrorist threat festers, legislative conflicts are likely to come to some form of boiling point. On these grounds, ask yourself this: Should Britain wait until another security crisis? Or should we reform our human rights arrangements out of pro-action rather than reaction? How might Britain respond quickest: by forming a Bill of its own? Or waiting for Europe to pass just 1% of all proposed amendments, as is statistically correct?
Take for example the case of Michael Adebowale. Even after being on a national security watch list for over a year, being known to have attended a terrorist training camp in Kenya before returning to the UK, he was able to do so due to the Treaty of Rome 1957 and ECHR, which outline the open parameters of the right to free movement.
On this premise, if Britain is to safeguard its citizens there must be a departure from both the ECHR and HRA; many forget that they are two separate documents. One cannot defeat a Cerberus having only removed just one of two heads. To remove the 1998 Act, but retain the Convention is a far graver prospect. In the days before the HRA, the subsidiarity clauses of the ECHR meant that UK judges had no such bite of the cherry and cases were sent straight to Strasbourg, whose judges had breadcrumbs to base their decisions on.
But what might the new Bill look like? One might imagine, on the most part, elements of the existing HRA will be retained, though interwoven, with existing UK case and statute law with wider cohesion. Vehicles for national security are allowed room to breathe. Britain and its isles would, presumably, be the jurisdiction. 76% of countries have clearly defined freedom of the press. The UK is not one of these countries. Correction of this freedom might go hand in hand with clearer legislation on the rights of free movement, for which 83% of states specify, but the UK is still somewhat ambiguous on.
Britain is back… though not without disturbing current arrangements. After establishing the fatal flaws with both the HRA and ECHR, the UK needs change. Big change. Legal consistency is key. Despite no obligation to exit the EU after abandoning the HRA and ECHR, this position figuratively represents a reverse Trojan horse of sorts. The UK hides within their construction as they exit the besieged European Union. Post-war paternalism, trade agreements and over-bureaucratised red tape aside, democracy in practice exists only on a national level. A Bill of Rights is the only panacea.
by Flynn Davies
* The contents of this article reflect the view of the writer and are not representative of the view of the Inns of Court Society.